San Francisco City Attorney dismantles Nudist's legal challenge Special

Posted Dec 15, 2012 by Jonathan Farrell
City Attorney Dennis Herrera sought to dismiss the law suit filed by nudist advocates last month in an effort to uphold longstanding laws prohibiting public nudity. On Dec. 13, Herrera and his staff filed a motion in U.S. District Court to dismantle
A nudist enjoys sunbathing
A nudist enjoys sunbathing
the nudist claim that a ban on nudity violates their individual rights under the First and Fourteenth Amendments in the U.S. Constitution. The nudist also claimed in their lawsuit filed this past Nov. 14, that the City's Ordinance ban is also preempted by California Law.
"Public nudity bans are a longstanding feature of municipal codes throughout the nation, and their constitutionality has been repeatedly affirmed by the courts -- including the U.S. Supreme Court," said Herrera.
The City's efforts to address the ongoing issue of public nakedness has been in the news for more than two years, especially when SF Supervisor Scott Wiener sought to enforce the existing bans on nudity in public.
San Francisco (and California itself) with its liberal atmosphere has always had an "open-mindedness" about nudity. Yet that was for places designated as "nudist colonies" and such. Yet in the past few years in The Castro District, especially at the "mini-park" at Market and Castro Street, which is the end of the F-Trolley MUNI line, the naked like to gather. No doubt a curiosity of sorts for tourists visiting from out of town. Yet for some of the people who live in The Castro, it is not appreciated.
At first the gathering seemed more like a passing fad. As Wiener explained to Bloomberg Businessweek, "I didn’t want to rush to introduce legislation for something that might be an aberration, so I waited almost two years to see if it would go back to the way it used to be," said Wiener. "Unfortunately, it only got more over the top. And eventually it got to the point where I needed to step in and take action."
This is how the dispute escalated between The City and the nudists, like Mitch Hightower, George Davis, Russell Mills and Oxane Taub. HIghtower and the other three mentioned were the ones who filed the lawsuit on Nov. 14. They filed their legal challenge almost three weeks before the SF Board of Supervisors voted to uphold nudity ban ordinances on Dec. 4.
"Ironically, the only novel legal theory plaintiffs put forward in this case is an equal protection claim that could actually undermine exceptions that allow nudity at permitted events like Bay to Breakers and the Folsom Street Fair," said Herrera. "The nudism advocates seem to have taken the position that if they can't be naked everywhere, no one can be naked anywhere," he added. "Fortunately, the legal challenge is without a basis in the law, and we're confident the court will dismiss."
Hightower and the other plaintiffs originally sought a motion for a temporary restraining order to halt the legislative process. U.S. District Court Judge Edward Chen did not hear that motion, but opted to consider the challenge instead as a petition for a preliminary injunction, once the ordinance was enacted.
The ordinance being challenge amended San Francisco's Police Code to prohibit individuals from exposing themselves on public streets, sidewalks, and most other public rights-of-way as well as on transit vehicles and in transit stations.
Policymakers created specific exceptions to allow for nudity during permitted festivals like the San Francisco LGBT Pride Parade, the Bay to Breakers foot race, and Folsom Street Fair. In adopting the legislation, which becomes operative on Feb. 1, 2013, the Board of Supervisors found that unfettered nudity unreasonably interferes with the rights of all persons to use and enjoy public spaces, and harms members of the public who are "unwillingly or unexpectedly exposed to such conduct." Herrera's pleading notes that even such minimal clothing as a G-string would satisfy the ordinance's requirements.